Virginia Cases March 19, 2020: Fulford v. Esper

Case Description

MEMORANDUM OPINION

Plaintiff, Daisy Fulford, has filed these claims against her employer pursuant Title VII of the Civil Rights Act of 1964 ("Title VII") and the Age and Discrimination in Employment Act of 1967 ("ADEA"). Specifically, plaintiff, a high school teacher working for the Department of Defense Education Activity ("DODEA") on a defense base in Japan, has alleged that she was removed from her position as cheerleading coach because of her race and her age, in violation of Title VII and the ADEA. Defendant has filed a motion for summary judgment on all of plaintiff's remaining claims pursuant to Rule 56, Fed. R. Civ. P. Defendant's motion has been fully briefed and argued orally, and thus is now ripe for disposition.

For the reasons that follow, summary judgment must be entered in favor of defendant on plaintiff's race- and age-based discriminatory termination claims. Defendant's stated reason for terminating plaintiff was unsatisfactory job performance as the cheerleading coach. Because of

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plaintiff's unsatisfactory job performance, plaintiff cannot establish a prima facie case of discrimination, and even assuming, arguendo , that she could establish a prima facie case, plaintiff has failed to show that defendant's legitimate, non-discriminatory reason for her termination, namely her unsatisfactory job performance, was mere pretext.

The entry of summary judgment is appropriate only where there are no genuine disputes of material fact. See Celotex Corp . v . Catrett , 477 U.S. 317, 322 (1986). Thus, it is important to identify the record facts as to which no genuine dispute exists. In this regard, Local Rule 56(B) directs a movant for summary judgment to include in its submission a separately captioned section listing in numbered-paragraph form all material facts as to which the movant contends no genuine dispute exists; the nonmovant must then respond to each paragraph citing admissible record evidence to establish a genuine dispute of material fact. In this case, both parties have substantially complied with the Local Rule. Accordingly, the facts recited herein are derived from defendant's list of material facts, incorporating plaintiff's comments where appropriate. Where plaintiff seeks to dispute an asserted fact, but either plaintiff's dispute is immaterial or plaintiff has failed to support her dispute with admissible record evidence, it has been noted.

1. Plaintiff is an African-American business and computer science teacher at Zama American High School ("Zama"), which is located on an American defense base in Japan. She has worked there for approximately 20 years.

2. Plaintiff was born in March 1945.

3. From April 2012 until his retirement in January 2015, Bruce Derr, who was born in February 1944, was the principal of Zama. Principal Derr was the superintendent of schools for the entire district of Japan prior to his initial retirement in 2009. In April 2012, Principal Derr was brought out of retirement to turn around Zama, which was on probation and not fully accredited at the time of his arrival.

4. The parents and students at Zama had been "angry and upset" with how the

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school had been run before Principal Derr arrived, but he helped Zama regain full accreditation within one school year.

5. The after-school cheerleading coach position is one of many after-school coaching and supervising assignments at Zama. These positions receive stipends, which vary in amount depending on how much time commitment is required. For example, the Athletic Director was paid nearly $6,000 per year, whereas the sponsor of the Eco Club was paid only $280 per year. For the 2013-2014 school year, the cheerleading coach position paid approximately $3,900 per year, indicating that a substantial time commitment was required (120-159 hours expected per school year).

6. These after-school coaching and supervising positions are typically re-filled each school year by the principal. Principal Derr often had difficulty filling these positions, including the cheerleading coach position.

7. Plaintiff acknowledged that the cheerleading coach was required to "establish[], maintain[], and publicize[] regular practice times/place," and "[t]each[] skills and [the] rules of the program."

8. Principal Derr placed plaintiff in the cheerleading coach position for the 2012-2013 school year. In the Spring of 2013, plaintiff was preliminarily selected as the putative cheerleading coach for the 2013-2014 school year as well.

9. Prior to August 2013, several instances of plaintiff's underperformance as cheerleading coach had been reported to Principal Derr and other administrators at Zama. For example:

a. Shana Seawright, the assistant principal at Zama, personally received complaints that plaintiff "left [students] alone at practice, she wouldn't help them learn anything new, [and] she wouldn't let those on base who knew how to cheer assist her with coaching [the cheerleaders] even after they offered." Several cheerleaders complained directly to Seawright "that they were often left alone to practice."

b. Plaintiff acknowledged that Scott Bolin, Zama High School Athletic Director, stopped by cheerleading practice on August 19, 2013 to ascertain

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whether there was adult supervision because he said that there had been a few times before where there had not been any adult supervision. Adele Collins, the Faculty Representative Spokesperson (FRS) at Zama in 2013, has averred that unofficial, informal cheerleading practices without adult supervision were arranged during the offseason by the captains of the team.

c. At the beginning of the 2012-2013 school year, the father of a cheerleader came to Principal Derr and "was visibly upset" with plaintiff, who "was nowhere to be seen during the cheerleading practices that took place prior to the start of the school year." According to Principal Derr, the parent stated that plaintiff "comes back late every year [from Summer vacation] and the girls are not prepared for the first game."

d. At a Fall 2012 football game, the cheerleaders were not permitted to perform their traditional half-time routine because they had not practiced sufficiently, and many of the cheerleaders became upset because the opposing high school cheerleading team was allowed to perform the traditional half-time routine.

e. In the Spring of 2013, a cheerleader's parent gave plaintiff a check to purchase a uniform, but plaintiff did not purchase the uniform. Plaintiff, months later, sent reimbursement to the parent via money order.

10. Principal Derr also received reports that plaintiff was often late for cheerleading practice. Plaintiff, in a sworn declaration, denied that she was often late for

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practice, but stated that "[i]f [she] was late it was once or twice a week, depending upon the week."

11. At some point during the Summer of 2013, the cheerleaders independently sought out a volunteer coach via Facebook to help them practice.

12. Cecilia Mullis, the wife of a servicemember, volunteered to assist the girls with their routines. She had years of experience with cheerleading and with coaching.

13. Prior to the start of the 2013-2014 school year, Principal Derr distributed cheerleading uniforms to the students before plaintiff returned to school.

14. The cheerleading team was required to begin practices ten days before the football season began, but plaintiff was out of the country ten days prior to the first football game in August 2013. According to Principal Derr, the cheerleaders came to his office "almost daily during the two weeks prior to the start of school [in 2013] to ask for [his] assistance or to complain about the cheerleading situation."

15. Upon plaintiff's return to Japan in late August 2013, she noticed that Mullis was practicing with the team, and plaintiff began questioning students about how they had received their uniforms. One student called her mother to tell her what was happening, and her mother came to the school to intervene in the situation.

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16. Principal Derr asked to meet with plaintiff, and they met a few days later on August 22, 2013. Plaintiff attended with her chosen representative, Adele Collins. Assistant Principal Shana Seawright was also present.

17. The meeting was urgent because the first football game was scheduled for August 24, 2013, and the cheerleaders needed to have a proper coach immediately.

18. Plaintiff's own sworn declaration states that at the August 22, 2013 meeting, Principal Derr first asked plaintiff how many years she had been involved with cheerleading activities, and plaintiff replied that she had been a cheerleading coach for seven non-consecutive years and that she had been the Far East Cheerleading director for three years. Principal Derr then commended plaintiff on several of her contributions to non-coaching activities, including a fundraiser, and he noted that plaintiff had received good ratings as a teacher.

19. Plaintiff's account states that Principal Derr then contrasted plaintiff's teaching ability with her coaching performance. With respect to plaintiff's coaching, Principal Derr stated that "he felt [plaintiff] was unorganized, [she] didn't attend cheer practice, and [she] was holding a check that belonged to a cheerleader." Plaintiff "immediately and strongly refuted" these claims.

20. Plaintiff's account of the August 22, 2013 meeting further states that Principal Derr noted that there had been complaints from parents, and that although these complaints had been made verbally, he could obtain the complaints in writing.

21. At the end of the August 22, 2013 meeting, Principal Derr told plaintiff that he intended to remove her from the cheerleading coach position, but she would remain in her full-time teaching position.

22. After the August 22, 2013 meeting, Principal Derr obtained in writing some of the parental complaints he had mentioned during the in-person meeting. For example:

a. Parent Jamie McKenzie sent a letter dated August 28, 2013 stating that plaintiff "often would come late to practice" and the students "just sat around, talked, did stretches for 15 minutes and had no real work out."

b. Parent Mely Sybico sent an email on August 30, 2013 stating that plaintiff "did not do anything" for the students because she was "mostly not in

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practice with them so all the routine was made up by the team"— i . e ., by the students themselves.

23. After removing plaintiff from the cheerleading coach position, Principal Derr asked the teachers that had been newly hired for the 2013-2014 school year if they were interested in the position. None of the new hires expressed interest. Principal Derr did not advertise the position with any of the other faculty because he had already advertised it in the Spring of 2013 and plaintiff was the only faculty member interested at that time.

24. Principal Derr spoke with Mullis, who had been practicing with the students during the Summer of 2013 on a volunteer basis and who had already begun the paperwork to become a substitute teacher, about whether she was interested in taking the cheerleading coach job.

25. Mullis submitted a formal application for the cheerleading coach position that listed her extensive cheerleading credentials. Mullis's application states that she had eight years of experience coaching cheer/tumbling, that she was a cheerleader for four years at the high school level (as a member of a team that won the state championship), that she was a cheerleader at the collegiate level (as a member of a team that placed fifth at a national competition), and that she had trained as a cheerleading judge.

26. Principal Derr selected Mullis as the new cheerleading coach on August 23, 2013. After Mullis became the cheerleading coach, Principal Derr received several positive comments from parents about Mullis. That year, the cheerleading team won second place in a cheerleading competition.

27. On December 30, 2013, plaintiff filed a formal complaint of discrimination related to her removal from the cheerleading coach position. She alleged race and age discrimination and retaliation based on EEO complaints she made from 2007-2009. On May 2, 2016, the Agency EEO issued a Final Agency Decision ("FAD") in a ten-page opinion which found that plaintiff was not unlawfully discriminated against based on her race, age, or in reprisal for prior EEO activity. On March 15, 2018, the EEOC affirmed the Agency EEO's FAD in a 13-page decision. On September 25, 2018, plaintiff's request for reconsideration of the EEOC's decision was denied.

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28. On December 27, 2018, after exhausting her administrative avenues for relief, plaintiff filed the instant suit in the Richmond Division of the Eastern District of Virginia. On April 12, 2019, the case was transferred to the Alexandria Division pursuant to 28 U.S.C. § 1406(a).

29. On May 10, 2019, plaintiff's § 1983 and Administrative Procedure Act ("APA") claims were dismissed because plaintiff withdrew her § 1983 claim and plaintiff's APA claim was preempted by Title VII and the ADEA.

30. On May 28, 2019, plaintiff filed an Amended Complaint. On July 3, 2019, plaintiff's retaliation claims and sex-discrimination claim were dismissed for lack of subject matter jurisdiction and for failure to state a claim. Accordingly, plaintiff's only remaining claims are (i) a Title VII race discrimination claim and (ii) an ADEA age discrimination claim.

Defendant has moved for summary judgment on all of plaintiff's remaining claims, namely race discrimination under Title VII and age discrimination under the ADEA. In this respect, the standard for summary judgment is too well-settled to require extensive discussion here. Simply put, summary judgment is appropriate when there is "no genuine issue as to any material fact" and based on those undisputed facts the moving party "is entitled to judgment as a matter of law." Celotex Corp . v . Catrett , 477 U.S. 317, 322 (1986). To serve as a bar to summary judgment, facts must be "material," which means that the disputed fact "might affect the outcome of the suit under the governing law." Anderson v . Liberty Lobby , Inc ., 477 U.S. 242, 248 (1986). Importantly, at the summary judgment stage, courts must "view the evidence in the light most favorable to...the non-movant." Dennis v . Columbia Colleton Med . Ctr ., Inc ., 290 F.3d 639, 645 (4th Cir. 2002).

Defendant has moved for summary judgment on plaintiff's race and age discrimination claims on the ground that plaintiff cannot establish a prima facie case of discrimination based on

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either race or age. Because the summary judgment record establishes that plaintiff was not performing her duties as cheerleading coach at a level that met defendant's legitimate expectations, summary judgment must be entered in favor of defendant on plaintiff's race- and age-based discrimination claims.

Plaintiff offers no direct evidence of race or age discrimination in this case. Her discrimination claims are therefore analyzed under the under the burden-shifting framework set forth in McDonnell Douglas Corp . v . Green , 411 U.S. 792 (1973). First, a plaintiff must establish a prima facie case of disparate treatment. To do so, a plaintiff must show (1) that she is a member of a protected class; (2) that she suffered adverse personnel action; (3) that she was performing her job duties at a level that met her employer's legitimate expectations at the time of the adverse employment action; and (4) that the position remained open or was filled by similarly qualified applicants outside the protected class. Id . at 802 (applying the requirements to race discrimination claims); Warch v . Ohio Cas . Ins . Co ., 435 F.3d 510, 513 (4th Cir. 2006) (applying the same requirements to age discrimination claims). In the event plaintiff establishes a prima facie case, defendant may rebut that case by articulating a legitimate, non-discriminatory justification for the adverse personnel action. See Warch , 435 F.3d at 513-14. To overcome the legitimate, nondiscriminatory justification provided by defendant, plaintiff must establish that the proffered justification is pretextual. Id . at 514.

Where, as here, the undisputed record evidence indicates that plaintiff was not meeting her employer's expectations at the time of her termination, a plaintiff fails to establish a prima

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facie case of discrimination. See Warch , 435 F.3d at 517-18 (holding that employee who was repeatedly reprimanded for performance and instructed on how to improve was not meeting employer's legitimate performance expectations). The undisputed summary judgment record clearly establishes that plaintiff was late to practice once or twice a week and that Principal Derr and Assistant Principal Seawright received complaints about plaintiff's coaching from cheerleader's parents and from the cheerleaders themselves.

Specifically, the parent of a cheerleader complained to Principal Derr in the Fall of 2012 that plaintiff did not attend the cheerleading practices prior to the start of the school year, that plaintiff comes back from Summer vacation late every year, and that the students are therefore not prepared for the first football game. Assistant Principal Shana Seawright has averred that she personally received complaints that plaintiff left students alone at practice and that plaintiff did not help the students learn any new cheerleading skills. In the Summer of 2013, the cheerleaders sought a volunteer coach via Facebook to help them practice, which indicates the cheerleaders may not have been happy with plaintiff's coaching. In August 2013, the cheerleading team was required to begin practices ten days before the first football game on August 24, 2013, but plaintiff was out of the country at that time. During this time period, Principal Derr has averred that the cheerleaders came to his office "almost daily" to ask for his

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assistance or to complain about the cheerleading situation.

In light of these complaints, which focus on plaintiff's failure to supervise practice and plaintiff's unsatisfactory coaching, Principal Derr terminated plaintiff on August 22, 2013 because of his belief that she was not meeting his reasonable expectations for the job. In sum, the summary judgment record makes unmistakably clear that plaintiff was not satisfying Principal Derr's legitimate expectations for the cheerleading coach position.

Seeking to avoid this conclusion, plaintiff argues that she was performing her job as cheerleading coach satisfactorily, that if she was late to practice, it was only by a few minutes, and that plaintiff was not informed of parents' complaints about her prior to her termination. With respect to performance issues, there will always be a dispute between an employee and the decisionmaker who terminated that employee. As the Fourth Circuit has made clear, a plaintiff's own belief regarding her performance does not create a genuine issue of material fact. See , e . g ., King v . Rumsfeld , 328 F.3d 145, 149 (4th Cir. 2003) (stating that a plaintiff's "own claim of

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satisfactory job performance...cannot establish a genuine issue as to whether [plaintiff] was meeting [the employer's] expectations"). Importantly, when evaluating job performance, "[i]t is the perception of the decision maker which is relevant, not the self-assessment of the plaintiff." Warch , 435 F.3d at 518 (quoting Hawkins v . PepsiCo , Inc ., 203 F.3d 274, 280 (4th Cir. 2000)); see also Hawkins , 203 F.3d at 280 (the opinion of plaintiff's co-workers as to the quality of plaintiff's work is similarly "close to irrelevant"). Here, the undisputed summary judgment record clearly establishes that Principal Derr, as the decisionmaker, had sufficient basis to terminate plaintiff based on her job performance. Specifically, Principal Derr had received complaints about plaintiff's coaching from parents and from students, Assistant Principal Seawright had received complaints about plaintiff's coaching from students, and several parents sent Principal Derr letters complaining about plaintiff's coaching. Accordingly, plaintiff's attempt to discredit the evidence upon which Principal Derr based his termination decision fails. Thus, plaintiff has failed to establish a prima facie case of race- or age-based discriminatory

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termination because she was not meeting the legitimate expectations of her employer, and defendant is therefore entitled to summary judgment on both claims.

Even assuming, arguendo , that plaintiff had established a prima facie case of discrimination, plaintiff has failed to show that defendant's legitimate, non-discriminatory reason for her termination, namely her unsatisfactory job performance, was mere pretext. See Evans v . Techs . Applications & Serv . Co ., 80 F.3d 954, 960 (4th Cir. 1996) (job performance is "widely recognized as [a] valid, non-discriminatory bas[i]s for any adverse employment decision").

To establish pretext, plaintiff must present evidence sufficient for a fact finder to conclude that defendant's explanation is not the real reason for plaintiff's termination as cheerleading coach, but rather was a pretext for discrimination against plaintiff. See Texas Dep't of Cmty . Affairs v . Burdine , 450 U.S. 248, 256 (1981). Plaintiff "can prove pretext by showing that [s]he was better qualified, or by amassing circumstantial evidence that otherwise undermines the credibility of" defendant's given justification. Moore v . Mukasey , 305 Fed. App'x 111, 116 (4th Cir. 2008) (quoting Heiko v . Colombo Savings Bank , F . S . B ., 434 F.3d 249, 259 (4th Cir. 2006)). But plaintiff may not "seek to expose [defendant's] rationale as pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's validity, or by raising points that are wholly irrelevant to it." Hux v . City of Newport News , Va ., 451 F.3d 311, 315 (4th Cir. 2006). Importantly, in the employment discrimination context, it is well-settled that federal courts should not sit as "a super-personnel department weighing the prudence of employment decisions." Anderson v . Westinghouse Savannah River Co ., 406 F.3d 248, 272 (4th Cir. 2005) (quoting DeJarnette v . Corning , Inc ., 133 F.3d 293, 299 (4th Cir. 1998)).

In addition to the arguments discussed and rejected in Part III supra , plaintiff argues her

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termination was pretextual because (i) lesser sanctions than termination existed, (ii) she was more qualified than Mullis, the individual hired as cheerleading coach after plaintiff was terminated, and (iii) that Principal Derr did not follow DS Regulation 5550.9 in hiring Mullis. In support of her contention in this regard, plaintiff cites Westmoreland v . TWC Amin . LLC , 924 F,3d 718, 726 (4th Cir. 2019) for the proposition that the availability of a lesser sanction can be evidence of pretext. Westmoreland is clearly distinguishable and inapposite here. There, unlike here, the plaintiff committed a single isolated transgression, and the employer's officials had advised plaintiff that the single transgression was nothing serious prior to her termination. See id . Here, the summary judgment record establishes that plaintiff's unsatisfactory job performance was not related to a single incident, but rather numerous instances of plaintiff being late to practice and the cheerleaders not being prepared to perform routines at football games. It would be inappropriate to second-guess defendant's employment decision here, where a number of complaints from cheerleader's parents and from the cheerleaders themselves provided the basis for termination.

Plaintiff also argues that she was more qualified than Mullis, the individual hired to be cheerleading coach after plaintiff was terminated. In this respect, to establish pretext plaintiff would have to make a "strong showing that [her] qualifications are demonstrably superior" to Mullis's qualifications. Heiko v . Colombo Sav . Bank , F . S . B ., 434 F.3d 249, 261 (4th Cir. 2006) (discussed in the context of promotion decisions). Here, the summary judgment record establishes that both plaintiff and Mullis were qualified for the position of cheerleading coach - both had substantial prior experience as cheerleaders and as teachers. Nothing in the summary judgment record indicates that plaintiff was substantially more qualified for the cheerleading coach position than Mullis. Accordingly, plaintiff's argument that plaintiff's termination was

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pretextual because she was more qualified than Mullis fails.

Finally, plaintiff claims that Principal Derr did not follow DS Regulation 5550.9 in hiring Mullis to the cheerleading coach position after terminating plaintiff and that Principal Derr's failure to follow DS Regulation 5550.9 provides evidence of pretext. As an initial matter, DS Regulation 5550.9 is not a regulation in the administrative law sense because DS Regulation 5550.9 was not issued after notice-and-comment rulemaking. Instead, DS Regulation 5550.9 is an internal operating procedure within DODEA that "govern[s] compensation of extra-duty assignments in the Department of Defense Dependents Schools." In this respect, DS Regulation 5550.9 states that a principal should make every effort to "assign extra-duty assignments to qualified employees of the school at which the activity will occur."

Here, Principal Derr essentially complied with this procedure by advertising the cheerleading coach position in the Spring of 2013. At that time, plaintiff was the only interested candidate, and she was presumptively placed in the position. After additional complaints were lodged about plaintiff's job performance during the Summer of 2013, Principal Derr removed plaintiff from the cheerleading coach position. Because no other candidates had expressed interest in the position only a few months earlier, Principal Derr only advertised the position to newly hired teachers at the school. When none of those teachers expressed interest, Principal Derr hired Mullis, who had been volunteering her time with the cheerleaders over the Summer of 2013 and who had started the process of applying to be a substitute teacher at Zama. The record clearly shows that Mullis was the only person interested in the cheerleading coach position after plaintiff was terminated. Thus, Principal Derr essentially complied with DS Regulation 5550.9

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on this record. And even assuming he did not, this would fall far short of establishing pretext in this case because the totality of the circumstances clearly indicates that defendant's legitimate, non-discriminatory reason for terminating plaintiff, her unsatisfactory job performance, was the real reason she was terminated as cheerleading coach.

In sum, plaintiff has failed to show that defendant's legitimate, non-discriminatory reason for her termination, namely her unsatisfactory job performance, was mere pretext. Accordingly, summary judgment must be entered in favor of defendant on plaintiff's race- and age-based discriminatory termination claims.

For the reasons set forth above, defendant's motion for summary judgment will be granted.

An appropriate order will issue separately.

The Clerk is directed to provide a copy of this Opinion to all counsel of record.

Alexandria, Virginia
March 19, 2020

/s/ _________
T. S. Ellis, III
United States District Judge